Federalism: a constitutional chameleon?

UNFEDERAL FEATURES OF INDIAN CONSTITUTION: Aladi Aruna; Mathivanan Publications, 7, Thirteenth Cross Street, Shastri Nagar, Chennai-600020. Rs. 495.

``INDEED, IF I may say to, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.'' (Dr. Ambedkar's Address in the Constituent Assembly.)

Our founding deed is our political pride, fundamentally federal, but its central operators have often diminished these basic features and distorted this finer federal facet. So the battle for federal affirmation and restoration of democratic decentralisation has gained momentum over the decade. Important Commissions (Rajamannar, Sarkaria et al) have reported and several seminars have stressed the federal soul of India. The present article is a unique blend of review of a passionately presented, luminously argued book, critical of the anti- federalist features ``in action'' of the Indian Constitution authored, not by an ``ivory tower'' scholar but by an activist minister, richly endowed with lucubrious erudition and flashes of jural statesmanship, rare among players of political circuses who are bibliophobic and allergic to learned critiques.

Mr. Aladi Aruna is an exception to the pride of political lions who roar platitudes and wear mobile labels lured by electoral grab of state power. He has my initial felicitation for an excellent book worthy of a jurist. The subject being of deep contemporary significance, I think it is appropriate to add some supplementary thoughts of mine tuned to the same goal of effective federal democracy. Politicians, these days, change colour like chameleons but constitutions, even in a pluralist social system, sustain the basic structure and maintain the basic features which are diamond-hard and inviolable although the rulers debase sublime values and corrupt the character of the Paramount Parchment.

What is the true character of Indian federalism? A large country with diverse cultures, religions, languages, tribal and ethnic differences and even marginal racial variations, with historical, geographical and political divergences, cannot bear true faith with democracy and collective freedom without authentic federal features.

Where there are subnationalities galore, group self-determination is a civil right universally recognised.

Federal countries have adopted this principle making it clear that self-determination does not always mean secession but just sufficient autonomy for self-expression of a homogeneous people. All the characteristics of a federal democracy are present in the Indian polity and, indeed, the Gandhian vision gave high value to provincial autonomy.

To brand the demand for homogeneity and autonomy as anti-national is a confusion of ideology and imbroglio of political thought; nay a negation of sub-national human rights.

In India, when linguistic states were demanded, there was no contra-national passion. On the other hand, it was a great nationalist who urged that linguistic states be formed. Central resistance to this desideratum was, at root, ``Delhi Mughaldom''. A people's right cannot be suppressed and this was demonstrated by Poti Sriramalu going on a fast unto death and actually his martyrdom accelerated the driving force of linguistic autonomy.

Today, when we look back on the various states, is there one single patriot who regrets or rejects the formation of Kerala and Karnataka, Andhra Pradesh, Tamil Nadu, Gujarat and Maharashtra? Likewise, the other states were formed in due recognition of the power and passion which supported the just claim of limited self- determination. Let me repeat that autonomy, only within the Indian sovereignty, is not anti-national but strengthens the country's fraternity.

The North-Eastern States are an integral part of India. But there was resistance to their statehood. Political blunder and bigotry created enemies and sowed the seeds of anti-Indian hostility by refusing statehood with generous autonomy.

The United States, the most powerful state in the world, despite considerable autonomy to the 50 states is proof that nationalism and devolution of power to states are not self-contradictory. The founding fathers of the Indian Union did recognise the federal destination of India but their vision was blurred by the bleeding Partition and massive migrations, as well as religious and ghastly massacres. Thus these transient traumas made the leaders feel a case for over-centralised polity. What is more, the Constitution made the states weak, holding on to the Raj creed of centrifugalism. Federalism for India is fundamental but a few key provisions strike a different note.

A constitution is an enduring instrument with organic growth. Certain important facets make for the unity of the country like a single judiciary and uniformity in fundamental laws, civil and criminal, fundamental rights which every citizen can exercise, an All-India Civil Service, Indian Army, Election Commission and Auditor General. Nevertheless, the powers of the Centre have made the states mere phantoms.

Centralised planning, through the Planning Commission appointed by the Centre, considerable preponderance in legislative power for the Union, the financial dependency of the states on the Centre's mercy, the administrative inferiority of the states, aggravated by the appointment of strategic instruments like Governors, Election Commissioner, Comptroller and Auditor General, and Judges of the Supreme Court, without reference to the states, make them meek and weak.

Economic planning, central police forces, effective industrialisation being under the direction and control of the Centre and the power of the Governor, a strange intermediary, to assent or withhold assent to legislative bills passed by the state legislators, add to the non-entitisation of the states.

The supremacy of Parliament in many legislative and other matters, even where the state legislatures have a place on paper, emasculates the states. Above all, the haunting humiliation and perennial intimidation of imposing instant death sentence on the state ministry through sudden imposition of President's rule, injects a precarious factor into the autonomy of the state and cipherises the limited constitutional sovereignty. More than a hundred times, almost every party in power at the Centre has cumulatively contributed to the stultification of state autonomy.

Neveretheless, misuse of power made Delhi behave as if India were a unitary state. The rush to Delhi for even small things from far-off corners of India, the pilgrimage to the Planning Commission even for sanction of minor projects, the financial dependence of the states on the Centre even for rescue from calamities, and several other factors have created resentment and generated a spirit of revolt.

The dialectics and dynamics of Indian politics for those who could read the lessons of historical materialism should have led to the realisation of a vision of Bharat as a powerful democracy with a strong Centre, strong states and strong Panchayati Raj as a measure of decentralisation. But power breeds obdurate obscurantism and absolute power appetises a fascination for die- hard addiction to absolutism.

Eventually 22 states were formed because of people's pressure. Nevertheless, much more remains to be done, not merely in the matter of formation of states but in the matter of Centre-State relations.

Indian statesmanship signally failed in the conscientious implementation of effective decentralisation through larger financial, developmental and legislative autonomy. The Rajamannar Commission argued for meaningful federalism. The Sarkaria Commission proved to the hilt the abuse of power under Article 356. The Seventh Schedule vests an excessive legislative supremacy in the hands of the Central Cabinet.

A cabal, functioning as a cabinet, controls the country with unitary authoritarian ukases sitting in the North and South Blocks and treating the states as glorified municipalities (with flags, black cats and other pomp and show).

The presence of Governors, appointed by the Centre but Janus- faced in functionalism, creates absurdities sometimes resulting in resignation of a few honest Governors when dishonest Central commands were covertly made but in vain.

Dr. Ambedkar had said in the ``Consambly'' about Article 356: ``I may say that I do not altogether deny that there is a possibility of this Article being abused or applied for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the provinces. In fact, I share the sentiments expressed yesterday that the proper thing we ought to expect is that such Articles will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, I hope the President who is endowed with this power will take proper precaution before actually suspending the administration of the provinces.''

M. C. Setalvad, one of the leading lights of the Indian Bar ever, has admitted that the hopes entertained by Dr. Ambedkar have been grievously belied. The Sarkaria Commission, which extensively and intensively analysed the intent and portent of Article 356, did observe: ``The Constitution framers expected that these extra- ordinary provisions would be called into operation rarely, in extreme cases, as a last resort, when all alternative correctives fail.''

Despite the hopes and expectations so emphatically expressed by the framers, in the last 36 years, Art. 356 has been brought into action no less than 75 times. Since the Sarkaria report, the abuse has continued unabated, come Congress, come Janata, come Janata Dal, come Janata Dal (S). After all, power corrupts and absolute power corrupts absolutely. The protean potential of this provision for Presidential subversion of provincial autonomy has often lent itself to versatile temptations in the hands of political pettifoggers in the Moghul mansions in Delhi.

One cannot understand why Mahe and Pondicherry, Goa, Daman and Diu stand in tiny isolation and egregious expensiveness. Merely because, at the time of their merger into the Indian Republic, a promise of cultural autonomy was granted by an idealist Nehru, should their insulation endure for ever as Union Territories?

The geo-political anomalies that darken the North-Eastern States summon more wisdom and statesmanship without which there will be constant frictions, contradictions and military excesses in denial of human rights. The Anand Sahab resolution (Punjab) was not for secession at all but for more powers to all the states, including the Punjab.

An angry distortion of this legitimate plea led to extremism on both sides and loss of life of large numbers of Indians. The Punjab is a state, which has been more sinned against than sinning. Police raj methodology, ``red in tooth and claw'' militarism in the North-East and macabre adventurist terrorism unbounded, could have been avoided, given nationalist-federalist vision, courageous reconciliation and trust begetting trust.

Bungling and blundering even over Jammu and Kashmir has drained our national resources and alienated not only the unfortunates in J and K, but many well-meaning Indians in the rest of the country. Please talk to the people on either side of the LoC, not merely bargain with Pakistan. Kashmiri people's voice may produce sensitive, sensible ideas.

What I have stated above is almost a background to a scholarly book written by Mr. Aladi Aruna. Of course, there is political praise of a political leader which jars when the subject-matter is a political thesis with imaginative, academic presentation of a case for federalism. Mr. M. Karunanidhi has written a thoughtful introduction and Mr. Aladi Aruna has thoroughly analysed the anatomy of the Indian Constitution and its failures in the federal dimension. The jurisprudence of federalism desiderates a cautious voice for the states in the matter of appointment of high constitutional functionaries.

The higher judiciary may need a National Judicial Commission. The Comptroller and Auditor General, the Chief Election Commission and the Planning Commission plus, plus come in this class. I do not want politics to influence the appointments of these great instrumentalities. What I emphatically clarify is to keep politics away from polluting these great appointments but no concentration of power as gift or grace of the Centre, the provinces being ignored.

Appropriate machinery, taking into consideration the views of the states (not governments but Opposition and leaders of public opinion) must be devised so that a highly elevated approach, with vital safeguards against infiltration of improper central influence, be provided through National Councils.

We thus implement the conscience of an old Roman adage, ``Whatever touches all should be decided by all.''

A dual polity, implicit in federalism, demands constitutional morality and paramount reverence for the specifics of the Constitution - a virtue conspicuously absent among our corrupt patriots and narcotic orators. Indian federalism is a basic feature of the Constitution as laid down in the Bommai case (1994 (3) SCC p1) by the Supreme Court and that binds the Centre and the states. So the time has come for the Court - the sentinel on the qui vive - to defend the states from the central invasion of the federal fortress.

To be unitary at the whim of the Union and federal at the pleasure of the Centre makes our Republic a quasi-federal chameleon. Indian pluralism, rich in diversity and deep-rooted in group identity, is not a mere coat of paint. In constitutional politics and justice there is no room for hide-and-seek jurisprudence. Law and life shall shape their modus vivendi in the integral yoga of federal justice.

I conclude, alas, on a serious note of criticism of the contra- federalism functionalism. The greatest blunder and gravest gaffe committed by the Centre which has inflicted large-scale disaster on the people of India and on several states in particular, is an act of commission exploiting an omission in the Constitution.

As the suprema lex now stands, the Central Cabinet proceeds on a self-serving interpretation that, vis-a-vis any international treaties, a Cabinet Minister can sign (and bind India) behind the back of Parliament, sans consultation with the states and avoiding even public debate, although the consequences of such an assent to a trans-national treaty may well be that the provinces will be victimised, that the agriculturists and the small scale industries and the states' exchequer themselves may go bankrupt and the Central Ministry may be surrendering sovereignty to exotic powers and organisations. Can the Centre sign away swaraj and use that treaty as an empowerment to pass legislations in utter disregard of the State list and the Concurrent list? What is urgent to restore federal fairness is to make provision in the Constitution that no treaty which has an impact on the country or the states shall not be valid unless ratified by a high majority in Parliament and resolutions by the states approving the treaty. Even in the U.S., no treaty will be valid unless ratified by the Senate. There are other states which respect (a la South Africa) similar federally friendly provisions. Federal jurisprudence and central justice can be harmonised by a veto power.

V. R. KRISHNA IYER

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